The politics of obesity: Here comes the NGO-Media-Class Action Bar Complex

Reuters

People line up to buy food at a fast food restaurant in Harlem in New York December 16, 2009.

Maybe we should blame Lucy. Evolution may have planted the genetic seeds of how we became high calorie junkies. Now politics is trying to redo what nature has wrought.

Three million years ago, Lucy—the partial skeleton of a young woman who has come to iconically represent our distant ancestor Australopithecus afarensis—roamed the fertile plains of North Africa. She survived mostly on fruits and seeds. With a brain roughly the size of a chimpanzee, Lucy was dimwitted and didn’t need a lot of calories to feed the high demands of advanced cogitation.

Flash forward to 2012. Our brains are more than three times as large. According to what’s known as the Expensive Tissue Hypothesis, large brains are high-energy consumers. Brain size and diet are closely correlated. Consistent with an adaptation to a high-quality diet, modern humans also evolved relatively small gastrointestinal tracts. The smarter we became, the more calories we needed. Humans with a genetic knack for storing fat would have had a Darwinian advantage.

In other words, As Elizabeth Kolbert quipped in her 2009 New Yorker essay on the growing obesity problem, “just as it is natural of gorillas to love leaves, it is natural for people to love funnel cakes.”

Modern humans consume all kinds of caloric-rich foods, and in great quantities. From a hard-wired perspective, the brain does not distinguish between Twinkies and a fat-laced steak. The human body, wrote, Michael Power and Jay Schulkin in The Evolution of Obesity, is “mismatched” to what’s available in today’s grocery stores. “We evolved on the savannahs of Africa. We now live in Candyland.”

"Yes, we have a fat problem. The United States Centers for Disease Control and Prevention estimates that 34% of adult Americans and almost 20 percent of pre-adolescents are overweight. But that’s hardly an American phenomenon." -Jon EntineYes, we have a fat problem. The United States Centers for Disease Control and Prevention estimates that 34% of adult Americans and almost 20 percent of pre-adolescents are overweight. But that’s hardly an American phenomenon. Studies show that the English, Greeks, Norwegians, Poles and other Western populations are almost as rotund, although their obesity levels are slightly lower. According to the World Health Organization, more than 1 billion people in the world are considered overweight, about 14 percent of the global population.

So, how should we address our compulsion to consume? We could educate ourselves to the need to harness our programmed desire to eat Kentucky Fried Chicken, drink Coke and splurge on funnel cake. The catchphrase here is “energy balance,” which states, simply, that ‘energy in’ should equal ‘energy out’. Education could be tied to self-regulation, in which food manufacturers are asked to voluntarily reduce exposure to children of certain foods, with the commitments independently monitored. There are already signs that that strategy is working.

We could legislate. In New York City, for example, Mayor Michael Bloomberg has proposed banning supersized sodas and sugary drinks, which has raised the hackles of left and right leaning libertarians everywhere and school district’s are rushing to ban ‘junk’ food and drinks on their premises.

We could tax. A growing number of European countries, including Denmark, Hungary, Finland and France, have imposed taxes on what they consider unhealthy foods, from butter to cupcakes to soda. But not all foods high in fat or carbohydrates are unhealthy, which challenges the inclination to impose blanket taxes. Even indulgent foods eaten in moderation—think Ben & Jerry’s ice cream, Dr. Pepper and late night nachos—are perfectly reasonable choices in a varied diet.

Food as drugs

Or, as is beginning to unfold in tort happy America, we could just sue. In the past few months alone, more than a dozen lawyers who previously had hit the class action lawsuit jackpot by suing tobacco companies have turned their sights on global food producers, restaurants and even grocery stores chains in hopes of yet another mega payday. They’ve filed more than 25 cases against international food companies, including ConAgra, PepsiCo, Heinz, General Mills and even yoghurt manufacturers.

To the ostriches in the food industry, beware: You are in the crosshairs of the NGO-Media-Class Action Bar Complex. What does that mean for your company and public health responsibilities?

The growing food technology sector, which encompasses processors as varied as packaged salad makers, fresh frozen seafood distributors, cereal producers, ice cream manufacturers and snack and soda companies, fancies itself as on the cutting edge of science. For example, the website for the Ohio-based Center for Innovative Food Technologies applauds its “expert network of food scientists [who] offer a full range of food safety services to food processors through microbiological consulting and testing, food safety auditing, and food safety and quality training.”

One problem: While food technologists see themselves as innovators on behalf of the human palate, non-governmental organizations (NGOs) and much of the media are reflexively anti-technology. To most journalists and self-designated public interest groups, the food industry isn’t an innovator but the enemy. They glibly caricature the processed food sector as Big Food, and that’s not meant as a compliment. Think “Big Tobacco.”

With the publication of The End of Overeating, David Kessler, a former commissioner of the US Food and Drug Administrator during the Clinton Administration has emerged as a guru of sorts for the anti-Big Food movement. He goes so far as to characterize food manufacturers as drug pushers. He invokes the popular industry term “eatertainment,” used derisively, to mock what he says is the industry’s desire to create ‘designer foods’ made from processed, highly caloric combinations.

Kessler invented his own term—“conditioned hypereating”—to describe the narcotic like effect he claims ‘fashion foods’ have on ‘innocent’ and ‘helpless’ victims—food consumers. He likens overeating to “compulsive gambling and substance abuse” and pushes a beguiling, but superficial and ultimately silly argument as to how to confront Big Food: “substitute healthier rewarding food.” So, why should I give up my beloved ice cream soda?

Super sized litigation

The real import of Kessler’s bestseller was to reenergize the coalition of anti-processed food advocacy media, NGOs and class action lawyers. The first serious public relations and legal challenge to the food industry dates to the late 1970s and extends to the 1990s. Plaintiffs blamed processed foods for their obesity, claiming that fast foods were inherently unhealthy and even dangerous. For the most part, the suits didn’t gain much traction. Judges almost always dismissed them, concluding that most reasonable people would not confuse burger joints with natural food restaurants, and therefore could not be blamed for their own poor health.

A second wave of activism, which began in the 1980s and targeted alleged false advertising, culminated with Pelman v McDonalds, a class action filed by New York parents on behalf of their teenage girls. The plaintiffs claimed they were helpless in the face of McDonald’s slick advertising, which disguised the poor nutrition of burgers, fries and Cokes, turning them from healthy eaters into fast food “heavy users”. Essentially, plaintiffs argued that because the fat content of food was not conspicuous—even after companies displayed caloric content—they were misled.

It was a frivolous argument, flunking the causation test, and even the liberal media and comedians made hash of such suits. But the case dragged on, which played into the hands of the ambulance chasers. It made it through to the US Court of Appeals before it was thrown out. But McDonald’s ultimately settled when faced with the likelihood of an appeal and tens of millions of dollars in further litigation expenses.

A third wave of litigation, beginning in the early 2000s, focused on consumer fraud laws. Suits claimed food manufacturers and restaurants misstated the fat or calorie content of processed foods. For example, cereal makers were targeted for allegedly misrepresenting the amount of nutrients or for marketing low-sugar versions of children’s cereals as a healthy breakfast alternative—although the ‘new and improved’ cereals contained nearly as much calories as the original version.

The discourse took on a more environmental tone in 2003 after the Surgeon General’s report on obesity, which advocated community-based action. The renewed public debate was inflamed by the release of a slew of documentaries and books (Super Size Me, Fast Food Nation, Fat Land, Omnivore’s Dilemma, Food, Inc.) that demonized processed foods and glorified “natural” and “organic” alternatives.

Now we are entering wave four, with the Kessler thesis front and center. The new popular narrative accuses ‘Big Food’ of conspiring to create food addicts who crave processed products that are fun to eat but nutritionally deficient. That wide net provides plenty of deep pockets that plaintiffs can target, from processers to food marketers to grocery chains insurance companies, and even to states and the federal government, which could be on the legal hook if a wayward court should decide that fast foods represent “crimes against the people.” Welcome to the NGO-Media-Class Action Bar Complex.

Activist lawyers and NGOs claim their goal is to educate and empower the public. They do have an argument. From a public health standpoint, it does not even require court victories to spark public debate and prod truculent companies into writing clearer labels and introducing healthier alternatives. But make no mistake: this coalition is classic jackpot litigation.

Foods marketed as “healthy” or “natural”—unregulated claims—are particular targets. California, with its pro-consumer courts, is the venue of choice. Suits have been filled in recent months against numerous companies, including Swiss Miss cocoa and Hunt’s canned tomatoes, claiming these products contain ingredients designed to hook consumers rather than just feed them.

“It’s a crime, and that makes it a crime to sell it,” said Don Barrett, a Mississippi lawyer, who has made millions of dollars suing tobacco companies on behalf of states, which had spent hundreds of millions of taxpayer dollars caring for sick smokers. Among Barrett’s new targets is Greek yogurt maker Chobani because it lists “evaporated cane juice” instead of sugar as one of the product ingredients.

“Food companies will argue that these are harmless crimes,” he said. “The tobacco companies said the same thing. But to diabetics and some other people, sugar is just as deadly as poison.”

Last year, Ferrero, the maker of Nutella, was sued for allegedly implying that its spread was part of a healthy diet “It’s difficult to take some of these claims seriously, for instance, that consumers was deceived into believing that a chocolate hazelnut spread was healthy for children, “said Kristen Polovoy, an industry lawyer at Montgomery, McCraceken. But that’s the argument proffered by defense lawyers said when Big Tobacco first went on trial.

The class action even brought ridicule from the normally compliant media. “Here’s a suggestion for the thousands of other litigious California mothers: Try a little responsible parenting. Try reading the labels and understanding what they mean,” read a blog from LA Weekly.

Yet faced with the unpredictability of the California courts, Ferrero settled the nuisance suit for more than $3 million. This expanding partnership of activist lawyers and NGOs, often encouraged by a media broadly sympathetic to their anti-processed food perspective, might yet recreate the legal Godzilla that wrecked havoc on the tobacco industry, even if the comparisons with ‘Big Food’ are not valid.

“People in the west are both more affluent and growing fatter, and that presents a perfect marriage of money and opportunity,” Robert Blood, the founder and managing director of SIGWATCH, a London and Freiburg based consultancy, said in an interview.

“Companies are drowning in issues,” Blood noted. “Activists take issues that are quietly bubbling in the background and suddenly bring them to the fore. We see signs that that is happening to the food industry.”

SIGWATCH tracks NGO to help companies understand how advocacy groups drive policy issues, and publishes regular news digests. In its report through summer 2012, attacks on the food and agriculture industries ranked just below energy as the favorite target of hostile NGOs. Monsanto, Cargill, Syngenta and other chemical and biotech companies are particularly vulnerable to web-based demonization campaigns, the report noted. NGOs have also continued their aggressive attacks against a host of food, beverage and grocery companies, including Nestle, McDonald’s, KFC, Coca-Cola, Pepsi, Unilever, Tesco and Sainsbury’s. Tesco and Sainsbury’s also received some praise from these NGOs for capitulating to some demands, particularly as regards labeling of foods with biotech ingredients.

“NGO activism is like a business,” Blood added. “Not because it earns profits for NGOs as class actions do for lawyers, but because savvy, high profile campaigns, especially if they are seen to humble big business, boost paying memberships and make NGO’s a magnet for foundation grants.”

The science behind regulating processed foods

With a compliant media only to eager to assign almost total responsibility for obesity to corporations, communities all over the world are banning the sale of sweets, salty snacks and sugary beverages in public schools. It may be surprising to learn that the scientific evidence linking obesity to ‘junk’ food consumption in schools is thin. A recent study by two Penn State professors followed nearly 20,000 students from kindergarten on, beginning in 1998. They recorded the students’ BMI (body mass index) at different grade levels and correlated the data with the availability of junk food at their school before and after bans were put in place.

The scientists also evaluated eighth graders who moved into schools that sold junk food with those who did not, and children who never attended a school that sold snacks with those who did. And they compared children who always attended schools with snacks with those who moved out of such schools. No matter how the researchers crunched the data, they could find no correlation at all between obesity and attending a school where sweets and salty snacks were available. Their conclusion? “Food preferences are established early in life,” said Jennifer Van Hook, the lead author and a professor of sociology and demography at PSU. “This problem of childhood obesity cannot be placed solely in the hands of schools.”

Obesity certainly raises legitimate public policy and health issues. How best to respond is a far pricklier question. At what point should individuals be required to take responsibility for his or her eating habits? If obesity is caused, primarily, by our genetics, should food manufacturers be forced to assume the associated health costs when someone gains weight?

Just as important, should we rely on legal and regulatory coercion to address this problem? Some legal experts argue that using the courts to set “obesity policy” borders on judicial paternalism. Berkeley law professors Stephen Sugarman and Nirirt Sandman point to the consequences of using the courts and regulatory system to address childhood obesity.

“Some people think the solution lies in using tort law to sue McDonald’s, Coca-Cola, and other corporations,” they wrote in the Duke University Law Journal. “We reject that notion. Others believe that government should order specific changes in the behavior of food companies and school officials—and yet, there is little reason for confidence that these “command and control” strategies will make a difference. Instead, we propose “performance-based regulation” of the food industry. … Schools are not told how to achieve better educational results, but better outcomes are demanded of them.”

While the litigation/regulation model has come to dominate the obesity debate, the industry has been moving on its own to address public concerns, with some notable success. In recent years, fast food companies have added many more nutritious alternatives and become leaders in the movement towards ‘food transparency’ and the largest companies have voluntarily reduced food ads on TV aimed at young children.

According to a newly released study in the American Journal of Public Health, economists monitoring the beverage industry’s promise to self-regulate and get sodas and other sugary drinks out of schools found that companies shipped 90% fewer calories to schools in 2010, compared with 2004, and reduced shipments of full-calorie sodas by 97%.

That’s the result of a pledge, called the School Beverage Guidelines, signed in 2006 by major beverage companies, former President Bill Clinton and health advocacy groups. It is enforced through independent monitoring, outlined calorie content and serving sizes. Robert Wescott, president of Keybridge Research, a private econonic research firm in Washington, that was selected to independently monitor the effort, said the landscape has shifted dramatically and that industry self-regulation can work.

“Is it possible that somewhere in America there’s a Coke machine in a hallway where I can put a buck in and get a Coke? Absolutely,” Wescott said. But he added that there has been no “backsliding” by food companies since 2010. “In the main, yes,” he said, the industry is doing would it committed to do.

Under the Healthy Hunger-Free Kids Act, the U.S. Department of Agriculture is preparing updated nutritional standards for foods and drinks that can be sold at schools. It is expected to target sports drinks, milk that is not fat-free and flavored milk. To what degree they will depend upon self-regulation—which in this case, appears to be working—is unclear, but NGOs and the tort machine are clearly pushing for a far more aggressive approach.

The precautionary media and industry response strategies

For the coalition of NGOs and Big Tobacco lawyers to work their litigation magic, they will need at least the tacit cooperation of journalists and bloggers. They have learned that the Wild Wild West of the web can greatly magnify their voices.

Journalists, who by and large lean left, can be paternalistic when it comes to reporting about food. They are not particularly sophisticated on many science issues, have a woeful understanding of risk and cost-benefit trade-offs, and are overly influenced by NGO campaigns. They are easily lobbied by advocacy groups with “science sounding” names, such as the Center for Science in the Public Interest, Union of Concerned Scientists, Environmental Working Group, Natural Resources Defense Council and the like, which are dominated by staffers with minimal science backgrounds, a deep seated antagonism to risk and cost/benefit analysis and a fossilized anti-industry ideology.

There are intriguing ‘class’ issues in play, as well. Reporters are typically middle class or affluent and control their eating. They view obesity as a lower class problem and see themselves as altruistic for promoting the simplistic storyline that foods that are not ‘natural’ (whatever that means) are automatically better for you. The anti-Big Food narrative also conforms to the media mindset that every story must have a villain, the bigger and more pernicious the better.

Most journalists also reflexively embrace the precautionary principle although the science community, by and large, does not. ‘Better safe than sorry’ may sound like a prescription for moderation, but taken to the extreme, if in place, the food industry could be required to prove that every new product is “healthy” even before it can be introduced. Its invocation provides crusading NGOs, bloggers and activist journalists with an unchecked justification for rejecting almost any processed food, especially those made using genetic modification or where trace chemicals can be found in food packaging.

How should the food industry respond when confronted by skeptical or even hostile journalists? Many food companies have convinced themselves they can “turn” a story their way by providing as interview subjects industry scientists who offer context and rebuttals, backed by solid research. If only it was that easy. Consumers, and the media who influence them, are often resistant to industry experts no matter how impressive their credentials or apparently air tight their research.

Journalists seeking balancing perspectives sometimes do not even interview corporate scientists, or if they do, they relegate their comments to the back end of their piece to signal to the reader that they do not take industry views as highly credible. Fairly or not, most journalists, when seeking out “independent” scientists default to NGO or university researchers—even though their credentials are often lackluster their views are shaped in academic environments hostile to business.

Rather than being reactive, the food industry needs to become vigilant and proactive. “Keep an eye first on Europe, and then on California,” advised SIGWATCH’s Blood.” Thos regions are very precaution minded, and deeply wedded to the not very scientific belief that ‘craft’ foods—organics and the slow food movement, for example—are always healthy, authentic and good, while ‘man-made’ foods—anything that that comes in a can, package or packet—is automatically unhealthy, artificial and bad.”

Food manufacturers have themselves to blame, in part, in jumping on the simplistic ‘natural is better’ bandwagon. By using expressions like “natural”, “simple” and “raw” in product advertising and labeling, they not only have attracted scrutiny, they imply that foods that don’t use such descriptions—the majority of their product line—are unnatural, processed and artificial—which the public now equates with unhealthy. There is an especially exquisite irony here, since in the post-war period, at least until the 1980s, food firms were very happy to develop and promote on its own terms novelty, from new tastes to greater convenience, and consumers loved it and bought their products.

Being passive in the face of the burgeoning Media-NGO-Class Action Bar Complex is simply no longer an option. Anti-science and anti-industry views become the template from which decisions are made by consumers but also by regulators who often respond not to the facts on the ground but to perceptions in the air. The food industry needs to get out in front on questions about its credibility and labeling transparency. Defensiveness is the absolutely worst strategy. When one becomes apologetic, the friendly media morphs into piranhas plying blood-tinged waters. Corporations and trade groups shouldn’t be shrill, but they need to forthrightly tell their side of the story.

Most critically, the food industry needs to respond more cohesively. It can’t allow campaigning activists to divide manufacturers or restaurants or food chains into opposing camps comprised of those who make “good foods” versus others who trade in “bad foods.” Those designations are fungible.  Just ask the lean, finely textured beef (LFTB) industry, which had long been praised for turning out a healthy, sustainable product —and is now on the edge of extinction because of the “pink slime” branding fiasco.

Major producers may lose the echo-chamber debate in the short run, but convincing the public about food safety and the importance and healthy qualities of most processed foods is an endless marathon, not a sprint. Food choice is an important value to embrace and promote. Aggressively make your voice known, in public forums and on the web. Make sure you and your allies present credible, science-based information. Do this relentlessly and the industry will not only survive but also thrive.

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